Keeping an eye on the 9th Circuit

Main menu

Category Archives: Search and Seizure

For several years the Supreme Court had approved of vehicular searches incidental to the arrest of the driver. Law enforcement officers had relied on this opinion, and in U.S. v. Gonzales they searched the defendant’s glove compartment as an incident of his arrest. Prior to the search, the Supreme Court had significantly changed the rule, and prohibited warrantless searches of vehicles incident to arrest except under certain circumstances; Arizona v. Gant, 556 U.S. 332 (2009).

The 9th Circuit panel held the Gant rule should apply retroactively in Gonzalez and suppressed the evidence, completely disregarding the rationale of the Fourth Amendment, a judicially invented rule attempting to prevent officers from using duress. The dissenting judge challenged this “reasoning” and wrote a critical opinon disagreeing with the other judges. A rehearing en banc was denied.On rehearing,here are the three judges response to the dissent:

“Judge Bea’s dissent presents a distorted view of what this case is all about. It requires a response that can be part of the public record. Otherwise our panel’s reasoned response to the en banc call would remain hidden from public view.”

The “distorted view of what this case is all about“ apparently did not sit well with the Supreme Court, and the Justices reversed the 9th Circuit without even conducting a hearing citing Davis v. U.S., 131 S.Ct. 2419 (2011). In Davis, the Supreme Court held the officers who were searching in good faith under existing law should not be penalized on grounds the Justices changed the rules. The Justices, citing this rule, reversed the 9th Circuit. Yes, the public should know the three 9th Circuit judges named above had ruled improperly, were reversed, and the dissenting judge did not have a “distorted view.” By all means, let’s make this reversal of the 9th Circuit panel part of the public record.Finally, in a non published opinion the per curium court affirmed the District Court denial of defendant’s motion to suppress. No apology for reversal of its “reasoned opinion” or its censorious snipe at the 9th Circuit dissenting judge.